The Founders’ Individual Mandate?

Once, Obamacare’s defenders were certain the Supreme Court would uphold the individual mandate requiring every citizen to purchase health insurance. Then came the oral argument. Solicitor General Donald Verrilli was unable to articulate a limiting principle to Congress’s powers. That set off a scramble to find historical precedent for the individual mandate.

The 1790 act regulated all ships engaged in foreign commerce and large ships engaged in domestic commerce. Most of the regulations addressed contract disputes, desertion, and what recourse the crew had if the vessel was unsafe. It detailed penalties for sailors and captains who failed to comply with the regulations.

Congress also required ships to have the modern-day equivalent of a first-aid kit: a “chest of medicines, put up by some apothecary of known reputation, and accompanied by directions for administering the same.” If the captain failed to provide that kit, then he would be required to pay his sailors’ medical costs “during the voyage.” This is not insurance or even really a purchase mandate; it’s a penalty for ship captains who failed to comply with a safety regulation.

Essentially, Elhauge argues that it’s irrelevant why Congress enacted these laws or which clause empowered it. To him it only matters that Congress did so. By this logic, Congress should be able to pass any law it wants as long as it has done something similar in the past.

Similar to the 1792 law, the 1798 law was a national security measure passed because the country lacked a standing army and navy. Here’s how the law worked: When American ships arrived at aUnited States port from a foreign port, the ship’s master would pay a fee of 20 cents per sailor, which he could deduct from the sailor’s wages. The President was authorized to spend the money “to provide for the temporary relief and maintenance of sick or disabled seamen” in port hospitals. Remaining funds (along with private donations) were put toward building maritime hospitals in ports of theUnited States.

To those grasping for precedent, this appears to be an 18th century Obamacare. But there are two key differences. First, as legal historian Philip Hamburger notes, early Americans would have recognized this law as a version ofEngland’s “Chatham Chest”—a government fund consisting of money deducted from sailor’s wages used to support disabled sailors.

Unlike Britain, Americain the 1790s lacked a strong navy. Merchant ships were the navy. Congress used the Marque and Reprisal Clause to give private merchant ships the power to attack and seize enemy vessels during war. In June 1798, as a result of the Quasi-War withFrance, Congress abrogated existing treaties withFrance and authorized merchant ships to attack French vessels. This change meant that “all merchant seamen were potentially engaged in the military struggle,” Hamburger notes. A month later, Congress enacted the 1798 law to fund naval hospitals and care for seamen as a part of the war effort. With the creation of a professional military, the marine hospital system was replaced by an official uniformed service—the U.S. Public Health Service Commissioned Corps.

Second, this fee is akin to a tariff, not a purchase mandate. The sailors weren’t buying anything. Instead, a fee was assessed from a specific group (sailors engaged in commerce with foreign ports). The government used those funds to provide a limited range of medical care at specific hospitals for those sailors. Unlike Obamacare, which requires every American to own a certain product, the sailors never owned anything.

Unlike Obamacare, these three founding-era laws applied only to individuals who were participating in an activity covered by Congress’s enumerated powers. These laws were not social programs.

Constitutional authority matters, and the context for these founding-era laws is significant. Precedent is found not by looking backwards at history to find justification for current policies, but by considering actions in the past in their own context and within the principled framework of the action. Obamacare is unprecedented, and soon we’ll see if the Supreme Court agrees.

Join The Discussion

I’ve been hospitalized twice since this whole charade of a “healthcare” bill was passed and the confusion and skepticism among the various medical staff and billers is disheartening to say the least. I’ve never seen anything like it in my 63 years. Everybody’s afraid to treat any ailment you might have for fear of reprisal, and rightfully so.

In my November 2010 emergency visit to Seton Southwest Hospital in Austin, TX I was treated for a distended bowel problem, complicated by a simultaneous attack of kidney stones. I waited in ER for over 7 hours however, as emergency staff discussed the pros & cons of admitting me. Eventually they decided that I would likely not survive a release after that time and admitted me for 2 days. My care was excellent, and after the 24 hours I was almost totally restored. Unfortunately for the doctors and the hospital however, Medicare paid – tyhen retracted the payment 100% after 8 months on the premise that I should never have been admitted in the first place. Yes – I said 100% DENIED ! Three times in fact ! And there was nothing I could do to help the doctors’ case. All that care was 100% gratis — thanks to the new Obungles’care’ admittance rules.

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